TFL Vsebine / Revija Revus

Unlike Kelsen, Hart never had the ambition to explain what ‘enables’ or ‘conditions’ law’s normativity. Nor does Bix. Hart’s inscription within a philosophical context dominated by J.L. Austin’s theory of language, predisposed him to developing what I have called elsewhere a ‘downstream account’ of legal normativity: its focus is to unveil how law’s normative dimension manifests itself (notably through the ‘critical reflective attitude’), rather than what enables it. That law is normative is a given, both for Hart and for Bix. So far, so good: different accounts of legal normativity can and do proceed from different starting points, with different explanatory ambitions. The problems start when one dismisses the significance of these differences, or the possibility that fruitful insights may arise from a theory that explicitly questions one’s foundational premises. That there is an unbridgeable gap between is and ought is just one of those assumptions. This paper questions this assumption. It argues that legal theory has a lot to learn from various forms of non-reductive naturalism that will, among other things, help dislodge the idea that any account of the social practices that give rise to legal norms must presuppose intentional agency all the way through (as per conventionalist accounts).